Nearly every court requires that litigants analyze possible privilege and work product protection for each attachment included in a withheld email or other document. This understandable approach raises an obvious question posed by a Delaware court: “how to handle emails between privileged persons that attach articles that are clearly not privileged standing alone.”
In ELM 3DS Innovations, LLC v. Samsung Electronics Co., Civ. A. No. 14-1430-LPS-JLH, 2021 U.S. Dist. LEXIS 198902 (D. Del. Oct. 15, 2021), the court analyzed that issue. The court noted that the clients “cannot immunize discovery of those” non-privileged documents by sending them to their lawyer. Id. at *15. But the court also wisely admitted that “I am sensitive to the possibility that the fact that a client sent (or received) a particular [non-privileged] article to (or from) his attorney on a certain date can implicate privilege concerns.” Id. The court therefore cleverly required the litigant to either: (1) “produce the non-privileged attachment[]”; or (2) “confirm that the attachment has already been produced in discovery under circumstances that demonstrate which custodians had possession of it.”
This approach makes great sense. The producing party thus assures that the adversary will receive each non-privileged document, but does not have to produce another copy of the non-privileged documents attached to a privileged email. Of course, that would not work for original documents clients send to their lawyers, but in the electronic age that never seems to happen anymore.